PROCEDURAL FAIRNESS: ENSURING TRIBAL CIVIL JURISDICTION AFTER PLAINS COMMERCE BANK. Jesse Sixkiller

PROCEDURAL FAIRNESS: ENSURING TRIBAL CIVIL JURISDICTION AFTER PLAINS COMMERCE BANK Jesse Sixkiller I. INTRODUCTION: INDIAN COUNTRY S JURISDICTIONAL ANOMALY In mid-north America, Indian country 1 is undergoing a renaissance, as sovereign American Indian tribes are asserting their ambitions, their power, and their values with greater and greater effectiveness. 2 As a result, many tribes are on paths toward economic self-sufficiency, political self-determination, and cultural rejuvenation. 3 Nevertheless, the United States Supreme Court has curiously continued to restrict these paths. 4 In particular, Indian tribes face great adversity in asserting civil jurisdiction over nonmembers 5 due to a guiding doctrine and precedent that only confounds what is already a jurisdictional crazy quilt. 6 In June 2008, the Supreme Court reaffirmed that adversity when it 1. The term Indian country means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 18 U.S.C.A. 1151 (West 2009). Though 1151 is a criminal statute, it generally applies to questions of civil jurisdiction. Decoteau v. Dist. County Court, 420 U.S. 425, 427 n.2 (1975). 2. Joseph P. Kalt, The Role of Constitutions in Native Nation Building, in REBUILDING NATIVE NATIONS: STRATEGIES FOR GOVERNANCE AND DEVELOPMENT 78 (Miriam Jorgenson ed., 2007). 3. Id. 4. See, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 210 (1978) (ruling that tribes lack criminal jurisdiction over non-indians unless specifically authorized by Congress); Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct 2709, 2714 (2008) (ruling that tribes lack jurisdiction over a sale of fee land between a non-indian to another non-indian). 5. To clarify, a nonmember is one not enrolled in a tribe, and may include non- Indians, non-enrolled Indians, and even Indians that are enrolled in a different tribe. For purposes of this Note, nonmembers and non-indians will be used interchangeably unless otherwise specified. 6. Nevada v. Hicks, 533 U.S. 353, 383 (2001) (Souter, J., concurring).

780 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 decided Plains Commerce Bank v. Long Family Land and Cattle Co. 7 Like other sovereign entities, tribes would like to regulate and exercise their adjudicatory authority over all individuals within their territories to further ensure the effectiveness of their governments. However, in stark contrast to the growth of civil personal jurisdiction among states, tribes have faced an onslaught of setbacks imposed by the Supreme Court that have restricted their governing capabilities. This Note will show that the Court has utilized a doctrine that stresses the importance of fee land in order to restrict tribal authority over nonmembers. Since the doctrine s founding, the Court has expanded its basic logic and alluded to otherwise clear instances where tribal jurisdiction should be proper. 8 The reason, which has become clearer as of late, is that the Court is not as concerned about land status as it is about fairness to nonmembers, especially to non-indians. 9 After Plains Commerce Bank, one has to wonder how much further the Court will go to insulate nonmembers from tribal authority. The recent resurgence of tribal authority demonstrates that one thing is certain: tribes are here to stay and they will continue their efforts toward greater economic, political, and legal control over their territories. This Note argues that such efforts must be well-calculated, as the Supreme Court is able and probably willing to issue a bright-line rule against tribal civil jurisdiction over nonmembers. Overall, this Note will show that tribal jurisdiction is indeed unfair, but for tribes, not for nonmembers. First, Part I will briefly introduce the sovereign status of tribes and then highlight how the Supreme Court has created legal disparities between state and tribal civil jurisdiction. In effect, tribal civil jurisdiction is an anomaly within the United States legal structure. Next, Part II will introduce Montana v. United States, 10 which has become the guiding legal doctrine. There, this Note will illustrate how the Supreme Court has fueled the doctrine s growth, over the course of various decisions, from a proposition into a robust general rule that tribes lack civil jurisdiction over nonmembers on nonmember fee land. Part III will provide an in-depth discussion of Plains Commerce Bank from the Cheyenne River Sioux Tribal Court to the United States Supreme Court. Part IV will argue that Montana s progeny of cases is less about fee land than it is about the procedural rights of nonmembers. Such an argument 7. 128 S. Ct. 2709. 8. See, e.g., Lisa M. Slepnikoff, Article, More Questions than Answers: Plains Commerce Bank v. Long Family Land & Cattle Company, Inc. and the U.S. Supreme Court s Failure to Define the Extent of Tribal Civil Authority Over Nonmembers on Non- Indian Land, 54 S.D. L. REV. 460, 462 (2009) (arguing that the Plains Commerce Bank Court misrepresented the facts of the case and employed an unduly narrow interpretation of the guiding legal doctrine). 9. See Matthew L.M. Fletcher, Toward a Theory of Intertribal and Intratribal Common Law, 43 HOUS. L. REV. 701, 713 (2006) (suggesting that the Supreme Court seems to assume that tribal law is unfair to nonmembers). 10. 450 U.S. 544 (1981).

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 781 helps explain why the Court has yet to rule in favor of tribal civil jurisdiction under the Montana doctrine. In addition, Part IV will refute the misleading idea, advocated heavily by the Court, that tribal courts are unreliable and unfair for non- Indians. To the contrary, tribal courts are competent justice tribunals that afford all parties due process and, therefore, deserve full faith and credit. Finally, Part IV will recommend measures that tribes, tribal judges, and tribal lawyers can take to ensure that future cases do not hinder tribal judicial capabilities as sovereigns outside the basic structure of the Constitution. 11 A. A Primer on the Political and Sovereign Status of American Indian Tribes Indian tribes may exercise jurisdiction because they are recognized sovereigns. In fact, tribes have always inherently governed themselves as distinct sovereign entities. 12 Beginning in 1831, however, the United States Supreme Court began to address and define the parameters of tribal sovereignty. 13 For example, in Cherokee Nation v. Georgia, Chief Justice John Marshall expressly declined to recognize tribes as foreign nations and instead famously defined them as domestic dependent nations. 14 He reasoned that tribes merely occupy the lands to which the United States holds title by virtue of colonial conquest. 15 Marshall also famously defined the government-to-government relationship between tribes and the Federal Government, which still exists, as a guardianward or trust relationship, meaning that the United States has a fiduciary duty to tribes. 16 Shortly thereafter, in Worcester v. Georgia, Marshall clarified that, despite their somewhat dependent status, tribes still exist as sovereign entities whose principal relationship is with the Federal Government. 17 As a result, he ruled that state laws have no effect within tribal boundaries. 18 From this early Supreme Court jurisprudence, tribes have come to be understood as quasi- 11. Plains Commerce Bank, 128 U.S. at 2724 (quoting United States v. Lara, 541 U.S. 193, 212 (2004) (Kennedy, J., concurring)). 12. United States Supreme Court Chief Justice John Marshall even recognized this fact almost two centuries ago in the landmark case Worcester v. Georgia, 31 U.S. 515, 519 (1832) ( The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial. ). 13. See generally Cherokee Nation v. Georgia, 30 U.S. 1 (1831). 14. Id. at 2. 15. Id. 16. See id. (stating that tribes relations to the United States resemble that of a ward to his guardian ). 17. See Worcester, 31 U.S. at 561 ( The whole intercourse between the United States and this nation, is by our constitution and laws, vested in the government of the United States. ). 18. Id.

782 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 sovereign entities, whereby they can exercise jurisdiction and governmental powers within their boundaries to the extent the Federal Government, particularly Congress, allows. 19 B. State Personal Jurisdiction To fully understand the shortcomings of tribal jurisdiction discussed in this Note, one needs to look first at the progress of state jurisdiction over the past century. In Pennoyer v. Neff, the Supreme Court incorporated into United States law two so-called well-established [international] principles of public law respecting the jurisdiction of an independent State over persons and property. 20 Under the first principle, according to Justice Field, every state possesses exclusive jurisdiction and sovereignty over persons and property within its territory. 21 Under the second, no state can exercise direct jurisdiction and authority over persons or property without its territory. 22 Further, Justice Field opined that the validity of a personal jurisdiction judgment could be questioned as to whether it afforded due process to the individual according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. 23 He added that the proceedings are only valid if issued by a competent tribunal. 24 In effect, Pennoyer issued a strict sense of territorial jurisdiction among the states for reasons of state sovereignty and individual due process rights. The precedent set forth in Pennoyer has mostly fallen by the wayside. In its place has stepped International Shoe Co. v. Washington, which adopted the minimum contacts test. 25 Under this test, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. 26 19. See Angelique A. EagleWoman & Wambdi A. Wastewin, Tribal Values of Taxation Within the Tribalist Economic Theory, 18 KAN. J.L. & PUB. POL Y 1, 2 (2008) (discussing how federal Indian law, U.S. Supreme Court decisions, federal jurisprudence, and congressional legislation have qualified the notion of quasi-sovereignty ). 20. 95 U.S. 714, 722 (1878). 21. Id. 22. Id. 23. Id. at 733. 24. Id. 25. 326 U.S. 310, 316 (1945). 26. Id. (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)) (emphasis added).

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 783 International Shoe s ideas of minimum contacts, fair play and substantial justice have since evolved and narrowed, leaving behind very little of Justice Field s legacy. For example, Hanson v. Denckla narrowed the minimum contacts test, requiring that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. 27 Down the road, World-Wide Volkswagen Corp. v. Woodson held that [a] forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State. 28 Five years later, in Burger King Corp. v. Rudzewicz, the Court explained that a defendant s action must be purposefully directed toward the forum State in order to establish minimum contacts between the defendant and the forum State. 29 Without more than the mere placement of a product into the stream of commerce, a forum State s exercise of jurisdiction over a non-resident would offend the traditional notions of fair play and substantial justice. 30 In effect, in the century that passed since Pennoyer, the relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States, became the central concern of the inquiry into personal jurisdiction. 31 Though territorial jurisdiction is still alive and well, the prior emphasis on federalism and exclusive sovereignty has clearly given way to more liberal notions, such as minimum contacts, and to what is fair and just. C. The Anomaly of Tribal Jurisdiction Unlike their neighboring states, tribes have not enjoyed a growing degree of jurisdictional capabilities. As discussed above, state civil jurisdiction, aided by the minimum contacts test, has expanded beyond strict territoriality requirements. 32 Simultaneously, the United States Supreme Court has restricted the exercise of territorial tribal sovereignty. 33 In effect, tribal jurisdiction often does not even reach the full extent of tribal land boundaries, leaving tribal courts, 27. 357 U.S. 235, 253 (1958) (emphasis added); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-73 (1985) (noting how purposeful availment affords individuals a fair warning and therefore protects an individual s liberty interest). 28. 444 U.S. 286, 297-98 (1980). 29. Burger King, 471 U.S. at 476. 30. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112-16 (1987). 31. Shaffer v. Heitner, 433 U.S. 186, 204 (1977). 32. See supra Part I.B and accompanying text. 33. See Alex Tallchief Skibine, Tribal Sovereign Interests Beyond the Reservation Borders, 12 LEWIS & CLARK L. REV. 1003, 1005 (2008).

784 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 and the application of tribal law, strictly confined. 34 The following discussion will provide a general overview of tribal jurisdiction, highlighting how certain inherent powers have been confined by unique legal doctrines. Just before the onset of the 1970s, tribal sovereignty managed to withstand many legal attacks by state interests as tribes increasingly exercised their self-governing powers within their territories. 35 For example, one of the preeminent cases of the time, Williams v. Lee, which was decided in 1959, recognized the exclusive authority of tribal courts to adjudicate matters arising out of Indian country. 36 The Williams Court opined that the exercise of state jurisdiction in [that] case would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. 37 The Court further noted that Supreme Court cases have consistently guarded the inherent authority of tribal governments over their territories. 38 In a sense, the Court was correct 39 because it was Congress that began to whittle away tribal sovereignty between the time of Worcester and Williams, or roughly the 1830s to the 1950s. 40 Finally, the Williams Court noted that tribal governmental power over their territories remains until Congress takes it away. 41 Certainly, Williams has helped to vitalize the development of tribal courts and tribal governments. 42 However, even though Congress has since been very supportive of the so-called tribal renaissance, particularly since 1975, 43 the Supreme Court has stepped into its most defining role over tribal interests since 34. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2726 (2008) ( The sovereign authority of Indian tribes is limited in ways state and federal authority is not. ). 35. See, e.g., Williams v. Lee, 358 U.S. 217, 223 (1959) (refusing to allow a state to exercise jurisdiction within the Navajo Nation over a contract dispute because state jurisdiction would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves ). 36. Id.; see also Matthew L.M. Fletcher, The Supreme Court s Indian Problem, 59 HASTINGS L.J. 579, 598 (2008). 37. Williams, 358 U.S. at 223. 38. Id. 39. See Fletcher, supra note 36, at 598 (noting there is a reasonable argument that the Court s decisions in the field from 1832 s Worcester v. Georgia until 1959 s Williams v. Lee amounted to little more than an interregnum where the Court announced very little federal Indian law ). 40. See id. (arguing that the Supreme Court just stood by and watched). 41. 358 U.S. at 223. 42. Fletcher, supra note 36, at 598. 43. Congressional support officially began with the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450-450n (1975). See EagleWoman, supra note 19, at 11-12 (noting that the Act signaled an end to the domination of termination and assimilation proponents and a return to recognition of tribal governmental authority ).

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 785 the Marshall Court and, at times, sharply confined tribal sovereignty in the process. 44 Over the past thirty years, the Supreme Court has whittled away long recognized inherent tribal authority in both criminal and civil matters. This Note will not discuss all cases where the Court has done so, but a short overview here of the Court s approach to tribal jurisdiction, in general, is useful before turning specifically to Plains Commerce Bank and its progeny. In United States v. Wheeler, the Court upheld the power of a tribe to punish members who violate tribal criminal laws. 45 The Wheeler Court noted that, through tribes original incorporation into the United States as well as through specific treaties and statutes, tribes have lost many of their sovereign attributes. 46 The Court further noted: [t]he areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. 47 If not for Oliphant v. Suquamish Indian Tribe, 48 decided two weeks earlier, such a statement would have been an unprecedented affront on cases like Williams v. Lee. 49 In Oliphant, Justice Rehnquist successfully subverted centuries of tribal authority to regulate conduct within tribal territorial boundaries. 50 The Court ruled that tribes cannot exercise criminal jurisdiction over non-indians. 51 Importantly, the non-indian criminal at issue committed the crime within the tribe s territory. Until Oliphant, tribes arguably controlled all internal relations. After Oliphant, tribal relations with nonmembers became essentially external relations. 52 Both Oliphant and Wheeler were limited in scope to tribal authority over criminal matters. Still, this Note will illustrate that Oliphant s rule has substantially transcended into the field of tribal civil jurisdiction. Since Oliphant, the Supreme Court has seemingly inched its way closer to a comparable rule in the tribal civil jurisdiction context. Oliphant s transcendence began with Montana v. United States, 53 which represented a similar reversal in precedent. Unlike the justices in Oliphant, the Montana Court could not craft a bright-line rule because stare decisis dictated that certain exceptions 44. See Skibine, supra note 33, at 1005 (arguing that the Supreme Court has driven huge holes through tribal sovereignty). 45. 435 U.S. 313, 331-32 (1978). 46. Id. at 325-26. 47. Id. at 326. 48. 435 U.S. 191 (1978). 49. 358 U.S. 217, 223 (1959) (pronouncing the infringement doctrine against state encroachments on tribal sovereignty). 50. Judith V. Royster, Montana at the Crossroads, 38 CONN. L. REV. 631, 632 (2006). 51. Oliphant, 435 U.S. at 210. 52. Royster, supra note 50, at 633. 53. 450 U.S. 544 (1981).

786 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 must exist. 54 Nevertheless, since Montana, the Supreme Court has consistently ruled against tribal civil jurisdiction over disputes involving nonmembers on nonmember fee land. Plains Commerce Bank is the latest example where the Supreme Court has rebuked tribal civil jurisdiction. There were two common themes in that case: the sacrosanct freedom of non-indians to alienate their real property and the unfairness of subjecting non-indians to tribal law. 55 Thus, the Court s ruling is notably limited: tribes may not have civil adjudicatory jurisdiction over the sale of nonmember fee land by one nonmember to another nonmember. 56 Even so, how the Court arrived at its decision is troubling and worthy of discussion. Essentially, the Court has likely paved the way for a case to confine Montana to a bright-line rule like Oliphant, based on an individual s status. Before a full discussion of Plains Commerce Bank, however, we need to first understand how Montana s legal precedent evolved into its present state as an anomaly in the United States civil jurisdiction framework. II. LOOKING AT CIVIL JURISDICITON IN INDIAN COUNTRY THROUGH A MONTANA LENS Today, any discussion of civil jurisdiction in Indian country often begins with Montana v. United States, 57 as it provides the legal framework for all subsequent cases that address tribal civil jurisdiction over nonmembers. 58 Each case decided since the 1981 Montana decision is important in its own right, becoming a piece of the Montana doctrine s puzzle. In other words, one cannot fully grasp the present legal framework, as defined in Plains Commerce Bank, without understanding its precedent. From Montana and the cases that follow, one can better understand the clockwork of Justice Roberts s opinion in Plains 54. Id. at 555-56. 55. See Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2719, 2724 (2008) (discussing how allotment policies created alienable fee simple lands for non-indians without expressly allowing tribes to retain civil jurisdiction over non-indian use of the land). 56. Though the issue was arguably whether the tribal court could exercise jurisdiction over a discrimination claim by an Indian party against a non-indian bank, Chief Justice Roberts clearly framed it differently. See Plains Commerce Bank, 128 S. Ct. at 2714 ( This case concerns the sale of fee land on a tribal reservation by a non-indian bank to non-indian individuals. ). 57. 450 U.S. 544 (1981). 58. See, e.g., Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) (relying on Montana); South Dakota v. Bourland, 508 U.S. 679 (1993) (using Montana to rule against tribal authority over non-indian hunting within a tribe s reservation); Plains Commerce Bank, 128 S. Ct. at 2719-20 (using Montana to rule against tribal adjudicatory jurisdiction over a non-indian bank).

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 787 Commerce Bank, the effects of the Federal Government s allotment policies, and ways tribes may navigate the framework and maintain civil jurisdiction over nonmembers. A. Planting the Seed in Fee Land: Montana v. United States In Montana, the Supreme Court established the proposition that, subject to certain exceptions, tribes lack jurisdiction over nonmember activities, even within their own territories. 59 Specifically, the Montana Court held that a tribe could not regulate hunting and fishing activities by nonmembers on lands owned in fee by nonmembers within its own reservation. There, the Crow Tribal Council had enacted a law prohibiting hunting and fishing within the reservation by anyone who is not a member of the Tribe. 60 Nevertheless, the State of Montana continued to regulate hunting and fishing by non-indians within the Crow reservation, 61 thereby creating a typical tribe-versus-state jurisdictional showdown. The Court s holding in favor of the State, along with its analysis, is vital to understanding how the status of land and individuals influences tribal civil jurisdiction cases. The Court s holding and analysis emphasized that tribes have been divested of their inherent tribal authority over non-indians. 62 It acknowledged that an 1868 treaty with the Crow obligated the United States to prohibit most non-indians from residing on, or passing through, reservation lands used and occupied by the Tribe. The treaty thereby conferred upon the Tribe the authority to control fishing and hunting on those lands. 63 However, the Court noted that the Tribe s treaty authority could only extend to land on which the Tribe exercised absolute and undisturbed use and occupation. 64 Further, the General Indian Allotment Act of 1887 65 and the Crow Allotment Act of 1887 66 substantially reduced the quantity of such land by dividing the reservation into individual fee simple tracts to members and selling the remaining tracts to nonmembers. 67 As a result, the Court reasoned, even if the treaty recognized certain inherent tribal power, that power could not apply to lands held in fee by non-indians. 68 In a very important footnote, the Court elaborated: 59. 450 U.S. at 565. 60. Id. at 549. 61. Id. 62. See id. at 559, n.9 (discussing how the creation of fee land within tribal territories divested tribal regulatory authority over nonmembers on that land). 63. Id. at 558-59. 64. Id. at 559 (quoting Treaty with the Crows art. 3, May 7, 1868, 15 Stat. 649). 65. 24 Stat. 388, amended by 25 U.S.C. 331 (repealed 2000). 66. Pub. L. No. 66-239, 41 Stat. 751 (1920). 67. Montana, 450 U.S. at 559. 68. Id.

788 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 There is simply no suggestion in the legislative history [of the allotment acts] that Congress intended that the non-indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction.... It defies common sense to suppose that Congress would intend that non- Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government.... [W]hat is relevant in this case is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land. 69 The footnote highlights how the Court understands the effects of allotment policies: it created alienable fee simple land upon which tribes were congressionally divested of certain inherent powers over non-indians. 70 The Court further noted how tribal dependency has divested tribes of many of their sovereign attributes. 71 Given tribes dependent status, 72 the Court said their powers were said to involve only the relations among members of a tribe, while powers involving nonmembers were curtailed. 73 According to the Court, tribes can discipline tribal offenders, control tribal membership, regulate members domestic relations, and impose inheritance rules for members. 74 However, the Court deemed that any exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, unless authorized by Congress. 75 The Court also attempted to reconcile these general principles with the Oliphant Court s ruling that tribes lack criminal jurisdiction over non-indians. 76 Its analysis introduced what has become the Montana doctrine, which consists of 69. Id. at 559 n.9 (internal citations omitted) (emphasis added). 70. See Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2719 (2008) (discussing how the history of the General Allotment Act and its successor statutes has been well rehearsed in [the Court s] precedents ). 71. Montana, 450 U.S. at 563 (citing United States v. Wheeler, 435 U.S. 313, 326 (1978)). 72. This idea of dependency was born in Cherokee Nation v. Georgia, where Chief Justice Marshall termed tribes to be domestic dependent nations. 30 U.S. 1, 16-17 (1831). 73. Montana, 450 U.S. at 564 (quoting Wheeler, 435 U.S. at 326). 74. Id. (citing Wheeler, 450 U.S. at 322 n.18). 75. Id. (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973)). 76. See supra notes 50-52 and accompanying text.

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 789 a guiding rule, termed a proposition, limited by two exceptions. First, similar to Oliphant, the Montana Court announced a general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. 77 However, while Oliphant proposed that inherent tribal sovereign powers do not extend to the activities of nonmembers in criminal matters, the Montana Court conceded that tribes surely retain inherent sovereign power to exercise some forms of civil jurisdiction over non-indians on their reservations, even on non-indian fee lands. 78 In effect, the Court declined to apply Oliphant s clear-cut prohibition against tribal criminal jurisdiction over non-indians to tribal powers of civil jurisdiction. Instead, based on precedential cases like Williams, 79 the Court conceded that certain circumstances may allow a tribe to exercise civil jurisdiction over non-indians, regardless of the land status. 80 As the Court described these circumstances, it thereby established what are now referred to as the two Montana exceptions. 81 First, a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements. 82 Second, a tribe [retains] inherent power to exercise civil authority over the conduct of non-indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. 83 Therefore, the Court carved out two clear circumstances where a tribe may exercise civil jurisdiction over nonmembers on non-indian fee land. The Montana doctrine, along with its two exceptions, applies only to situations where tribes assert jurisdiction over nonmembers on nonmember-owned fee lands. 84 While the case certainly seems to allow tribes some leeway, unlike Oliphant, subsequent cases illustrate that the fate of tribal civil authority over nonmembers on nonmember fee land still rests upon the subjective leeway of judicial interpretation. 85 77. Montana, 450 U.S. at 565. 78. Id. (emphasis added). 79. Williams v. Lee, 358 U.S. 217, 223 (1959). 80. Montana, 450 U.S. at 565. 81. See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2720-21 (2008) (addressing the two recognized exceptions ). 82. Montana, 450 U.S. at 565 (citing Williams, 358 U.S. at 223) (emphasis added). 83. Id. at 566 (citing Williams, 358 U.S. at 220) (emphasis added). 84. See Royster, supra note 50, at 634. 85. See infra Part II.B (illustrating how the Supreme Court has used subjective interpretation to consistently reject any argument that a Montana exception exists).

790 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 B. Montana s Unconditional Growth Since Montana, the Supreme Court has decided a number of cases that affect tribal civil jurisdiction over nonmembers. During that time, Montana s proposition against tribal jurisdiction over nonmembers has practically evolved into a no-exceptions rule. This Note will walk through some of the key cases and highlight how the Court has relentlessly refused to recognize, and consequently narrowed, the exceptions to Montana s proposition. Through its consistent refusal, the Court has drastically enlarged Montana s precedential force and left Williams a relic of the past. The Supreme Court continued its exploration of tribal authority over nonmembers on nonmember fee lands in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 86 where it narrowed Montana s second exception. 87 There, a Yakima Nation 88 zoning ordinance conflicted with a Yakima County zoning ordinance. The issue was whether the Yakima Nation had exclusive authority to zone either of two tracts: (1) an open area that was a mixture of nonmember fee lands and tribal allotments held in trust, and (2) a closed area that was surrounded by tribal lands held in trust. 89 The case resulted in a plurality decision that ultimately held that the tribe lacked jurisdiction over the open area, but retained inherent jurisdiction over the closed area. 90 Justice White s opinion, which guided the Court as to the open area, is probably the most important because it narrowed Montana s second exception, and consequently narrowed the application of Williams. 91 He opined that the second Montana exception, also known as the direct effect exception, did not apply because the nonmember activity in the open area did not imperil any tribal interests. 92 Recall from Montana that a tribe may exercise civil authority over the conduct of non-indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe. 93 According to Justice White, however, [t]he impact must be demonstrably serious and must imperil the political integrity, the economic security, or the health or welfare of the tribe. 94 By adding that there must be a demonstrably serious impact that must imperil 86. 492 U.S. 408 (1989). 87. See id. at 432-33 (White, J.) (requiring tribal interests to be imperiled in order to meet the direct effects exception). 88. Since Brendale, the tribe has legally corrected the spelling of its name through Congress, and it is now the Yakama Nation. 89. Brendale, 492 U.S. at 421-22. 90. Id. at 433-48 (Stevens, J., concurring). 91. Id. at 429-32. 92. Id. at 432. 93. Montana v. United States, 450 U.S. 544, 566 (1981) (emphasis added). 94. Brendale, 492 U.S. at 431.

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 791 the health and welfare of the tribe, 95 Justice White effectively narrowed the second exception and the application of Williams, which had guarded against the undermining effects of state jurisdiction on tribal sovereignty. 96 Four years later, the Court decided South Dakota v. Bourland, 97 which extended the Montana approach to tribal authority over nonmembers on all fee lands within tribal territories. 98 There, the issue was whether the Cheyenne River Sioux Tribe could regulate hunting and fishing by non-indians on lands located within the Tribe s reservation, but acquired by the United States for the operation of a dam and reservoir. 99 The Tribe claimed that a treaty reserved its inherent regulatory authority, and various Congressional flood control statutes did not divest that authority. 100 Before Bourland, the Montana approach relied on the idea that, when enacting the allotment acts, Congress intended to divest tribes of their jurisdiction over non-indians who purchased new fee lands within tribal territories. 101 The Bourland Court extended Montana s general rule to all fee lands within tribal territories, regardless of whether the fee lands were created by allotment policies. 102 According to the Bourland Court, fee status is sufficient to trump tribal jurisdiction over nonmembers. 103 Importantly, Justice Thomas deemed the distinction between the purpose of allotment policy and the flood control statutes unimportant. To focus on purpose, said Justice Thomas, is to misread Montana. 104 In other words, the purpose of the act does not matter. Instead, more important to the Court s analysis is that the effect of the transfer [of land] is the destruction of pre-existing Indian rights to regulatory control, because those lands had come to be held in fee by nonmembers. 105 Therefore, after Bourland, it does not matter whether an act intended to turn lands into alienable fee lands, but whether the lands have become alienable fee lands. If lands have passed to 95. Id. 96. See Williams v. Lee, 358 U.S. 217, 223 (1959) (refusing to recognize state jurisdiction within tribal territory because it would infringe on the right of the Indians to govern themselves ). 97. 508 U.S. 679 (1993). 98. Royster, supra note 50, at 636. 99. Bourland, 508 U.S. 679, 681-82 (1993). The United States acquired these lands by virtue of the Flood Control Act of 1944, ch. 665, 58 Stat. 887, and several subsequent acts that authorized various takings of Indian lands after severe floods had devastated the lower Missouri River basin in 1943 and 1944. Id. at 683. 100. Id. at 685. 101. Montana v. United States, 450 U.S. 544, 559 n.9 (1981). 102. See Bourland, 508 U.S. at 692 (focusing on the effect of fee simple land, regardless of the purpose of its creation). 103. Id. 104. Id. at 691. 105. Id. at 692 (emphasis added).

792 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 nonmembers in fee, then tribes must meet the burden of proving either exception under the Montana analysis to exercise jurisdiction over them. In Strate v. A-1 Contractors, the Court extended Montana s application (1) beyond fee lands to the equivalent of fee lands and (2) beyond tribal governmental jurisdiction questions to tribal adjudicatory jurisdiction questions. 106 There, the question was whether a tribal court had adjudicatory jurisdiction over a nonmember who was involved in a traffic accident with another nonmember on a state-maintained highway, but which ran through the tribe s reservation and was held in trust by the Federal Government. 107 In other words, the nonmember activity did not occur on nonmember fee land, but the Court did not think such a fact mattered. 108 Instead, the Strate Court ruled that the highway was the jurisdictional equivalent of alienated, non-indian land for nonmember governance purposes. 109 Justice Ginsburg reasoned that the right-of-way was open to the public, traffic was subject to the state s control, and the tribe had retained no gatekeeping right, so the tribe could not assert a landowner s right to occupy and exclude. 110 In essence, although the tribe still held the land in trust, the highway had essentially been divested, thereby making the land s status equivalent to nonmember fee land. Yet another blow to tribal jurisdiction, Strate expanded Montana s application to cases involving nonmember fee land or its equivalent, and it expanded the Montana analysis to questions of tribal adjudicatory jurisdiction. 111 Eight years later, the Supreme Court returned to tribal civil jurisdiction in Atkinson Trading Co. v. Shirley, 112 which solidified Montana s general rule and offered a preview of where some justices would like to take Montana. 113 There, the Court opined that Montana s general rule constituted a presumption that Indian tribes lack civil authority over nonmembers on non-indian fee land. 114 It then applied that presumption and held that neither Montana exception was met. 115 The Court s holding illustrates how difficult it is to meet the exceptions. For 106. 520 U.S. 438, 454-55 (1997). 107. Id. at 442. 108. Id. 109. Id. at 454. 110. Id. at 456-57. 111. Until Strate, the Court s Montana line of cases involving regulatory authority had only addressed questions of a tribe s civil governmental jurisdiction. After Strate, all cases addressing a tribe s civil adjudicatory jurisdiction, such as Plains Commerce Bank, involve what is now known as a Montana-Strate analysis. See, e.g., Atkinson Trading Co. v. Shirley, 532 U.S. 645, 653 (2001) (referring to the Montana-Strate line of authority ). 112. 532 U.S. 645 (2001). 113. Id. at 654-57. 114. Id.; see also Royster, supra note 50, at 637-38 (discussing the case in more detail). 115. Atkinson Trading Co., 532 U.S. at 655, 657.

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 793 example, the Court emphasized that a consensual relationship under the first exception must stem from commercial dealing, contracts, leases, or other arrangements, and receipt of tribal services does not create the requisite nexus between a tribe and a nonmember to support an exception to Montana s general rule. 116 In effect, the Court clarified that the first exception is extremely limited. Beyond the actual holding, Justice Souter s one-paragraph concurrence argued, importantly, that land status should not be the first principle that the Court should consider in a tribal jurisdiction case. 117 Instead, Justice Souter argued, the first principle should be Montana s general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe... regardless of whether the land at issue is fee land, or land owned by or held in trust for an Indian tribe. 118 Souter s argument, though brief in Atkinson, has developed into an important factor for the Supreme Court. 119 That same year, the Supreme Court decided Nevada v. Hicks, which ruled that tribal ownership of land, on its own, is not enough to establish tribal authority under the Montana analysis. 120 The issue was whether a tribal court could assert its jurisdiction in a civil case against a state official who entered tribal trust land to execute a search warrant against a tribe member suspected of violating state laws. 121 In short, the Court held that the tribal court did not have the authority to hear the case, as neither Montana exception applied. 122 The Court explicitly rejected the argument that the tribe had civil authority because the activities occurred on tribal trust land. 123 Though land status was central to the analysis in both Montana and Strate, Justice Scalia opined that the language of Montana 124 implied that the general rule of Montana applies to both Indian and non-indian land. 125 The ownership factor, or the status of the land, is just one factor to consider in determining whether regulation of the activities of nonmembers is necessary to protect tribal self-government or to control internal 116. Id. at 655 (quoting Montana v. United States, 450 U.S. 544, 565 (1981)). 117. Id. at 659-60 (Souter, J., concurring). 118. Id. (quoting Montana, 450 U.S. at 565). 119. See Nevada v. Hicks, 533 U.S. 353, 375-76 (2001) (Souter, J., concurring). See also Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2724 (2008) (quoting Hicks, 533 U.S. at 383 (Souter, J., concurring)). 120. Hicks, 533 U.S. at 360. 121. Id. at 355. 122. Id. at 364-65, 371-72. 123. See id. at 359 (Scalia bluntly responds to the argument: Not necessarily. ). 124. The language Justice Scalia referred to was where Montana reads: [t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-indians on their reservations, even on non-indian fee lands. 450 U.S. 544, 565 (1981) (emphasis added). 125. Hicks, 533 U.S. at 359-60.

794 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 relations. 126 In other words, the existence of tribal ownership, on its own, is not enough to establish tribal authority. 127 In Hicks, Justice Souter wrote another concurring opinion that sought to further constrict any importance placed on land status and that highlighted the Court s developing logic regarding tribal jurisdiction. 128 Therefore, an in-depth discussion of his concurrence is warranted here. Overall, Souter mostly agreed with the Court, but felt it had not gone far enough and should have been more explicit. 129 Taking a more solid stance than he did in Atkinson, Justice Souter vigorously argued that land status within a reservation is not a primary jurisdictional fact, but is relevant only insofar as it bears on the application of one of Montana s exceptions to a particular case. 130 Justice Souter s desired approach would first look at the character of the individual over whom jurisdiction is claimed. 131 He claimed: The principle on which Montana and Strate were decided (like Oliphant before them) looks first to human relationships, not land records, and it should make no difference per se whether acts committed on a reservation occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact. 132 Justice Souter offered three reasons why his approach is more sound and practical than the land status approach. 133 First, he argued that tying tribal authority to land status would produce an unstable jurisdictional crazy quilt. 134 He reasoned that land on Indian reservations constantly changes hands, so a jurisdictional rule based on land status would prove extraordinarily difficult to administer and would provide little notice to nonmembers, whose susceptibility to tribal-court jurisdiction would turn on the most recent property conveyances. 135 Second, a presumption against tribal court civil jurisdiction squares with the principal policy concern underlying Oliphant: nonmembers must receive adequate notice and be protected from unwarranted intrusions on their personal 126. Id. at 360 (internal citation omitted) (emphasis added). 127. Id. 128. Id. at 375-86 (Souter, J., concurring). 129. Id. at 375-76 (Souter, J., concurring); see also Royster, supra note 50, at 639-40 (discussing Souter s concurrence in more detail). 130. Hicks, 533 U.S. at 375-76 (Souter, J., concurring) (emphasis added). 131. Id. at 381. 132. Id. at 381-82. 133. Id. at 382-85. 134. Id. at 383. 135. Id. (citing Hodel v. Irving, 481 U.S. 704, 718 (1987)).

Ensuring Civil Tribal Jurisdiction After Plains Commerce Bank 795 liberty. 136 Justice Souter reasoned that tribal courts differ from traditional American courts, particularly with respect to the Bill of Rights and the Fourteenth Amendment, which do not of their own force apply to Indian tribes. 137 He conceded, however, that the Indian Civil Rights Act of 1968 ( ICRA ) 138 makes a handful of analogous safeguards enforceable in tribal courts, 139 but claims that the guarantees are not identical. 140 Further, Justice Souter argued, the tribal law frequently followed by tribal courts would be unusually difficult for an outsider to sort out. 141 He noted that tribal law, unlike the traditional American court system, is frequently unwritten, being based instead on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices, and is often handed down orally or by example from one generation to another. 142 As a result, tribal courts usually apply a mix of tribal, federal, state, and traditional law. 143 Essentially, Justice Souter argued that nonmembers should be ensured the normal rights of due process that can come only from an American court system. According to his logic, subjecting nonmembers to tribal court is unfair, because they cannot possibly understand such foreign law and procedures. Finally, Justice Souter argued that no effective review mechanism exists to police tribal courts decisions on matters of state or federal law. 144 Though he correctly stated that tribal-court judgments based on state or federal law can be neither removed nor appealed to state or federal courts, his claim that an effective review mechanism fails to exist is an overstatement. 145 This point becomes important in Plains Commerce Bank, because there is arguably an opportunity for federal courts to review tribal court decisions, or at least provide a second opportunity for parties who lose in tribal court. 146 136. Nevada v. Hicks, 533 U.S. 353, 383-84 (2001). 137. Id. at 383-84 (citing Talton v. Mayes, 163 U.S. 376, 382-85 (1896)). 138. 25 U.S.C.A. 1302 (West 2009). 139. Hicks, 533 U.S. at 384 (Souter, J., concurring) (citing 25 U.S.C. 1302). 140. Id. (quoting Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 194 (1978)). 141. Id. at 384-85. 142. Id. at 384 (quoting Ada Pecos Melton, Indigenous Justice Systems and Tribal Society, 79 JUDICATURE 126, 130-31 (1995)). 143. Id. 144. Nevada v. Hicks, 533 U.S. 353, 385 (2001). 145. Id. To the contrary, various post-exhaustion review mechanisms are available. See generally Judith V. Royster, Stature and Scrutiny: Post-Exhaustion Review of Tribal Court Decisions, 46 U. KAN. L. REV. 241 (1998) (discussing the standards, and extent, of post-exhaustion review of tribal court decisions). 146. See Royster, supra note 50, at 642 ( Nonmember parties to lawsuits in tribal court who do not consent to tribal jurisdiction may seek post-exhaustion review in federal court of the tribal court s jurisdiction to hear the lawsuit. ).

796 Arizona Journal of International & Comparative Law Vol. 26, No. 3 2009 C. A Shift From Land Status to Justifiable Expectations? Following Hicks, many Indian law scholars believed that Montana was on the verge of a new direction, as directed by Justice Souter. 147 Since Montana, tribes witnessed an erosion of both governmental and adjudicatory civil jurisdiction. Increasingly, there was an emphasis on nonmember fee land. However, in the past ten years, as seen in Justice Souter s concurrences 148 (and to a small extent in Justice Scalia s opinion in Hicks 149 ), the Supreme Court seemed to focus on the status of the individual, rather than the land. Essentially, Oliphant was beginning to rear its horns within the civil context. The underlying reason for change seemed to be couched in an idea that tribal adjudicatory jurisdiction would be unfair to nonmembers. 150 After Hicks, but before Plains Commerce Bank, Professor Judith Royster suggested that Justice Souter might influence the Court into adopting an approach that would make nonmembers justifiable expectations the cornerstone of the Montana analysis. 151 Under this theory, nonmembers would be held to have consented, or to have sufficient effects on tribal governmental interests, only if the court can find that they had justifiable expectations of being subject to tribal jurisdiction. 152 In other words, the Montana exceptions would be met, and therefore tribal jurisdiction would be valid over a nonmember on nonmember fee land, only if the nonmember justifiably expected to be subject to tribal jurisdiction. Royster noted that such an approach may turn on the subjective intent of the nonmembers rather than on title or territory or any other basis on which governmental authority generally rests. 153 The problem with the expectations approach is that any nonmember can make an argument in court that they never expected to be subject to tribal jurisdiction. Royster argued that holding tribal civil authority on tribal lands hostage to the expectations of nonmembers would repudiate the modern recognition of tribal self-government and the entire course of federal Indian law. 154 As seen from the line of cases outlined above, the Court has increasingly scaled back tribal civil jurisdiction over nonmember fee land. After Hicks, tribal sovereignty advocates feared the Court would extend the Montana-Strate analysis to nonmember activity on Indian trust land. 155 Such a move, as Royster 147. See generally Royster, supra note 50. 148. Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659-60 (2001) (Souter, J., concurring); Hicks, 533 U.S. at 375-86 (Souter, J., concurring). 149. See 533 U.S. at 355-75. 150. See Fletcher, supra note 9, at 713-14 (analyzing the Supreme Court s rhetoric). 151. Royster, supra note 50, at 643. 152. Id. 153. Id. 154. Id. at 645. 155. See id. at 647.